The relationship between the statutory remedies provided by the Companies Act and the Arbitration Act has proven to be controversial in recent times. The difficulty arises usually because the basis on which the statutory remedy is invoked (eg oppression, winding-up) is often an underlying commercial dispute which is the subject matter of an arbitration clause. The courts have given different...
The Bombay High Court on Mutual Mistake, Damages and Restitution
In Rolta v MIDC, the Bombay High Court has recently considered some important questions relating to the doctrine of mutual mistake, damages for breach of contract and restitution. It is worth examining the judgment closely as it appears to depart from some well-established principles of contract law. The case arose out of a Memorandum of Understanding (‘MoU’) which Rolta and MIDC entered into in...
Unenforceable Agreements and Credit Rating Agencies
A striking feature of the credit market over the past decade or more is the growing importance of credit rating: its significance for an applicant in urgent need of credit for his business cannot be overstated. This has given rise to some difficult legal problems: an obvious one is the liability of a credit rating agency (‘CRA’) for negligent entries. Another is whether a CRA is entitled to take...
The Indian Supreme Court on Lifting the Corporate Veil
In its recent judgment in Balwant Rai Saluja, a three-judge Bench of the Supreme Court has considered a number of important questions relating to when, if ever, it is appropriate to lift the corporate veil. Readers may recall that we had previously discussed Lord Sumption’s magisterial judgment on this point in Petrodel v Prest: Although the Supreme Court has not endorsed precisely the same...
The Blue Paper and the Pink Paper: The Interpretation of Options
One of the most frequently encountered issues in the practice of commercial law is the construction of contractual notice requirements: a contract that confers on one of the parties the right to do something (eg exercise an option or a break clause) would ordinarily require that party to give notice to the other party. The consequences of failing to understand exactly what the notice requires and...
Reliance v Union of India: Implied Exclusion of Part I of the Arbitration Act
The Supreme Court recently gave an important judgment (Reliance Industries Ltd v Union of India) on the implied exclusion of Part I of the Arbitration and Conciliation Act, 1996, for arbitration agreements that are governed by Bhatia International (ie, all agreements concluded before 6 September 2012). RIL v UoI is likely to be welcomed by the arbitration community as further evidence of the...
Retrospective Tax Legislation and ‘Small Repairs’
The Vodafone case—which, of course, is yet to be finally resolved—has triggered a debate in India about the legality and propriety of retrospective tax legislation. Much has been said about the latter but not very much about the former. One issue that is often contested in relation to legality is whether the retrospective amendment is ‘clarificatory’. The reason this is important is not so much...
Maestro Engineers Per Incuriam: The Supreme Court on the Arbitrability of Fraud
In its recent decision in Swiss Timing Ltd, the Supreme Court has dealt with some important questions relating to arbitrability in Indian law. Swiss Timing, a (as the name suggests) Swiss company, was engaged by the Organising Committee of the Commonwealth Games (‘Delhi 2010’) in 2010 to provide timing, score and result systems for the CWG (‘TSR Contract’). After the conclusion of the games...
The Meaning of ‘Plant and Machinery’ for the Purposes of Capital Gains
The National Gallery describes Sir Joshua Reynolds as the “leading English portraitist of the 18th century” and expert “in the work of Rembrandt, Rubens and van Dyck”. Improbably, the sale of one of his great paintings, the Omai of the Friendly Isles, recently gave rise to an interesting question of income tax law that has also troubled the Indian courts: what precisely does ‘plant and...
Announcement: 7th Nani Palkhivala Foundation Taxation Law Essay Competition, 2014
(The following announcement comes from the National Law School of India Review) The National Law School of India Review (NLSIR), the flagship journal of the National Law School of India University (NLSIU), Bangalore, in association with the Nani Palkhivala Memorial Trust is pleased to announce the release of topics for the 7th Nani Palkhivala Foundation Taxation Law Essay Competition. The...
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